Wednesday, February 26, 2014

The Texas Court of Criminal Appeals today held in Texas v. Granville that the Fourth Amendment protects against searches of cell
phones incident to arrest. Texans now cannot have the contents of their
cell phones and other electronic devices searched indiscriminately after they’re
booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.

As an attorney friend described the ruling in an email, "The
primary issue was whether the Fourth Amendment exception that allows
searches of an arrestee’s property for contraband also allows a
wholesale search of a cell phone. The decision has a good explanation
about why modern technology requires heightened protection above that
applied to shoes, pants, etc. The decision even cites with approval the
recent DC Circuit decision holding the NSA metadata collection program
unconstitutional." Here's an notable excerpt from the majority opinion:

The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects - a cell phone - without a warrant.

The US Supreme Court agreed this term to consider similar issues in a pair of related cases. According to Reuters, "The court will hear oral arguments in April and
issue rulings by the end of June. The cases are Riley v. California,
13-132 and U.S. v. Wurie, 13-212." The Texas CCA opinion governs state and local law enforcement, not the feds.

According to a new Texas Tribune poll, 49% of Texas voters support legalizing possession of marijuana in small, personal use amounts, while 77% support legalizing it for medical purposes. (See question 46 of the poll here.)

Regrettably, the Tribune did not poll the proposal that's been most frequently bandied around at the Legislature - keeping marijuana illegal but reducing criminal penalties for low-level possession from a Class B misdemeanor to a Class C. Such bills passed out of the House Criminal Jurisprudence Committee in 2005 and 2013 but never received a floor vote. Even so, if 49% of Texans support outright legalization, one imagines even more would support keeping pot illegal but reducing the punishment.

The suggestion to reduce penalties also has practical, economic arguments in its favor. Class B misdemeanors carry with them the possibility of jail time, meaning counties must pay for both pretrial incarceration costs at the jail and attorneys for indigent defendants. By contrast, Class C misdemeanors are typically handled with a ticket and involve no jail time (except for "failure to appear," the same as if you don't pay a traffic ticket). Thus, not only would counties not incur costs for jail and lawyers for the indigent, both cities and counties would get a new revenue stream from Class C tickets paid.

Both times the House Criminal Jurisprudence Committee recommended lowering penalties for low-level marijuana possession, the measure appeared to have enough votes on the floor to pass in the lower chamber. But House leadership, presumably hoping to "protect" members from themselves, wouldn't allow the bills to reach the House floor. Perhaps changing public opinion will allow a different result next session. Not only would it be good public policy - saving money for counties and freeing up police to focus on more serious crimes - but the measure appears to reflect the current zeitgeist among voters, judging from this and other recent opinion polls.

There was a hearing yesterday of a US Senate Judiciary Committee subcommittee titled "Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences." Among those giving testimony was Marc Levin of the Texas Public Policy Foundation. See his testimony (pdf), which framed the issue in terms of conservative values:

As conservatives, we are appropriately skeptical of government that is too large, too intrusive, and too costly, and we insist on accountability and transparency. Government is at its most restrictive when it imposes solitary confinement so it is only appropriate that we bring a critical focus to this issue rather than succumb to an out of sight, out of mind mentality. While we recognize solitary confinement is needed in some instances, policies and practices must be implemented to ensure it is not unnecessarily used to the detriment of public safety, taxpayers, and justice.

Levin also honed in on a public safety issue frequently raised on Grits: The direct release of prisoners from solitary confinement onto the street.

While often viewed primarily as a moral issue, solitary confinement has significant implications for public safety. First and foremost, prisons must discontinue the practice of releasing inmates directly from solitary confinement to the public.

A study in Washington state found that inmates released directly from the Supermax prison, which consists entirely of solitary confinement, committed new felonies at a rate 35 percent greater than that for inmates of the same risk profile released from the general population.

Additionally, a greater percentage of the new crimes committed by those released from solitary confinement were among the most serious violent felonies. Despite this finding, many states continue to release inmates directly from solitary confinement, with more than 1,300 such releases in 2011 in Texas alone. In 2013, a Colorado inmate released directly from solitary confinement murdered the state’s director of corrections, Tom Clements. Alarmingly, dating back to 2002, half of those released from Colorado prisons who subsequently committed murder served time in solitary confinement, with some discharged directly to the street. However, as documented below, major changes are underway that are significantly reducing overall solitary confinement in Colorado and those discharged directly from this custody level, with the latter figure falling from 221 in 2004 to 70 in 2013.

The average American may understandably wonder, if an inmate is too dangerous for the general population of a prison, how can they live next to me the next day? While inmates who have served their entire sentence must by law be released , this date is not a mystery to corrections officials. Stepping them down to a lower level of custody at least several months prior to release is not too much to ask.

Now, at a time when other states are reducing the number of prisoners
they keep in solitary confinement, a new move is underway in Texas that
could reduce the numbers even more.

Brad Livingston, executive
director of the Texas Department of Criminal Justice that operates the
109-prison state corrections system, told the American-Statesman that he
expects an ongoing review of solitary confinement policies — known as
administrative segregation, or ad seg, in prison lingo — could drop the
numbers further. ...

With likely the largest number of convicts in solitary confinement, Texas faces increasing questions over its policies.

Livingston
and other prison officials note that more than half of the 7,200
convicts in solitary confinement are housed there because of violent
behavior against staff and other prisoners or because they are escape
risks. The rest are members of violent crime gangs.

The average
stay in solitary confinement in Texas is just under two years, prison
statistics show, longer than those in other states.

“The intended
use of administrative segregation was to reduce violence on staff and
inmates. Unfortunately a reduction in violence on staff has not been the
case in Texas since the state greatly increased the use of
administrative segregation in the 1990s,” Lance Lowry, a correctional
officer who is president of a Huntsville union local for guards, said in
testimony submitted to the Senate committee.

“The overreliance on
solitary confinement in Texas may be a direct result of lack of trained
and experienced staff. … A better-trained and experienced workforce
could better manage an increasing mental health population, reducing the
overuse of solitary confinement,” he said.

In addition, Lowry and
prisoner-rights advocates agree that Texas’ practice of releasing
convicts from administrative segregation directly to the streets isn’t a
good idea. Advocates have complained that is a sure recipe for new
crimes to be committed.

Jason Clark, a spokesman for Texas’ prison
system, said that in 2013, 1,243 felons were released directly from
solitary confinement to the streets — including 500 who served their
entire sentence and 743 who were released on various forms of parole
supervision. Statistics weren’t immediately available on how many of
those convicts had come back to prison for new crimes.

The Texas Legislature authorized a study of solitary confinement last session but failed to fund it. One hopes this new round of attention will spur the state to move forward with the study so the Legislature can more substantively address the question in 2015.

The
intended use of administrative segregation was to reduce violence on
staff and inmates. Unfortunately reductions in violence on staff has
not been the case in Texas. Serious staff assaults in Texas has risen
with the increased use of administrative segregation. Serious assaults
on Texas correctional staff has gradually risen over 104% during the
last 7 years. In 2013 over 79% of the 499 reported intentional
exposures to bodily fluids occurred in segregated housing areas of the
Texas Department of Criminal Justice. None of the exposure assaults
involved regular general population offenders.

Most inmates in
administrative segregation are often confined to small cells without
windows, and little audio/visual stimulation. Such extreme isolation
can have serious psychological effects on inmates and can lead to
increased aggression towards staff, mental illness, self-mutilation and
suicide. Inmates in administrative segregation have little social
contact aside from abnormal communications involving yelling at
offenders in other cells. Lack of normal social contact breeds
increased aggression which increases aggression towards staff who may be
the only normal social contact this segment of the offender population
has.

'Deadly Affection'
The Dallas Morning News this week published an informative series on domestic violence investigations and prosecution.

A local argument against jail privatization
A GOP commissioners court candidate in Liberty County wants the private prison firm Community Education Centers out of the local jail, reported Texas Prison Bidness, to end the "waste of millions of dollars." The county's contract stipulates that per-inmate costs go up when incarceration levels fall, meaning the county continues to pay even when crime falls and they use the jail less.

Special treatment by Tyler police for Smith County official?
Smith County Judge Joel Baker - a member of the State Commission on Judicial Conduct - was investigated by local police for allegedly pointing a video camera at a neighbor girl's window and soliciting contact through messages on an IPad. This blog published the police report and suggested Baker received special consideration.

According to the Daily Caller and local news,
the police had camped on a corner and were issuing jaywalking
citations. The jogger came along, wearing earbuds listening to music.
That’s common around the university, around the city, around the entire
world.

Police ordered her to stop, and she did not hear them and continued
jogging. Police then chased her and tried to grab her to get her
attention, and she reacted as just about anyone would, and tried to
brush them off before realizing that they were police officers. A
witness, Chris Quintero, saw the incident and said that it was clear
that the woman could not hear the police officers when they first
approached her, and reacted to being touched from behind.

Jaywalking is a Class C misdemeanor, not typically an offense that
leads to arrest. Police say the jogger was arrested for failure to
identify herself and for a traffic signal violation. The arrest is under
investigation.

Flawed forensics and 'shaken baby syndrome'
Radley Balko had a piece yesterday on the changing science involved in shaken baby cases and the difficulty courts have reevaluating convictions based on faulty forensics.

The Texas District and County Attorneys Association's weekly case summaries last week described a new Court of Criminal Appeals decision which required sex-offender registration for offenses committed before the creation of the registry. The decision, though, failed to address the question of whether the underlying statute is constitutional, an issue dissenters said they should have confronted. Here's TDCAA's case summary:

Issue:
Did
the legislature’s 2005 amendments to the sex offender registration
statute require a defendant to begin registering even though he was
initially convicted in 1990 and had never previously been required to
register?

Holding:
Yes. After being
convicted in 1990 for sexual assault of a child, the defendant was not
required to register as a sex offender when his sentence was complete in
1995. The registration statute was amended multiple times over the next
decade, each time with a “savings clause” that clarified the statute
was not retroactive as to convictions as old as his. In 2005, the
legislature deleted all of the savings clause language. The plain
language of the resulting statute requires everyone convicted of a
registerable offense after 1970 to now register with DPS. Read the opinion.

Dissent (Price, J.):
The
court ruled that a challenge to the constitutionality of the statute
based on its retroactivity had not been preserved and did not consider
it. The court should have considered the merits of the constitutional
challenge and remanded the case to the court of appeals. Read the dissent.

Commentary:
The
court does not reach the question of whether it is unconstitutional to
retroactively impose a registration requirement upon a sex offender who
was not previously required to register. But the prevailing view is that
such a retroactive application does not constitute an ex post facto violation. It is also clear that the Legislature’s intent was to require such sex offenders to register.

Friday, February 21, 2014

personnel in charge of running prisons and jails with large populations of Hispanic inmates must comprender what the inmates are saying.

”There
is a demand now really in a lot of places for officers who are
bilingual,” explains Ken Kerle, former managing editor of the American
Jail Association and the author of a number of books about jails. ”What
if you’re a correctional officer running a cell block and everyone is
speaking a language you don’t understand? You have to have people
linguistically capable of understanding what they are talking about,
particularly in an institution.”

This is especially true for states like Texas, Arizona and
California. But that doesn’t mean they are the only ones who value
bilingual corrections officers. Kerle adds, “Even here in Kansas, our
Hispanic population continues to grow.”

Robert Hurst, the public
information officer at the Texas Department of Criminal Justice, says it
is “absolutely” helpful for officer safety if officers are bilingual.
Hurst says his team is always looking for skilled bilingual employees,
throughout the entire department.

Wednesday, February 19, 2014

Really cool story by Michael Hoinski at Texas Monthly on "paños, the handkerchiefs that prisoners decorate with black ballpoint
pens or colored pencils—or, in a pinch, with coffee beans, ash, and even
egg yolk (it makes a nice yellow color)." They've been outlawed in Texas prisons, but prisoners keep making them and art collectors are snatching them up.

Though it may sound like a spin-off of the Oscar-nominated movie Dallas Buyers Club, this PBS News Hour report about the black market in prescription drugs out of Mexico really has more to do with inflated pharmaceutical prices and the failure of states like Texas to expand Medicaid under Obamacare. The story opens:

In borderland Texas, a widespread lack of health insurance is linked to
poverty and high rates of diseases such as diabetes, obesity and high
blood pressure.

Cheaper prescription drugs to treat these
conditions are available across the border in Mexico. But physicians and
law enforcement are tracking a relatively new trend — the smuggling of
medicine in bulk from Mexico to U.S. patients who no longer feel safe
shopping for them in Mexico.
Mexican Pharmacist Jorge Sandoval says people who buy his medicines these days often buy for people they don’t even know.

“There’s
a trade in legal prescription medication,” he said in Spanish from his
shop in Chihuahua, Mexico, about an hour south of the border. “The trade
is generated by people (in both countries) who want to buy medicine at a
lower price. People are bringing in ice chests to fill with medicines
that they sell to friends and relatives.”

About 24 percent of Texans have no medical insurance, the highest percentage of uninsured in the nation. And although Texas has some of the highest enrollments
in the new health care marketplaces created under the Affordable Care
Act, the numbers represent a small fraction of the overall uninsured.

That’s
one reason why, for years, people have crossed the border for cheaper
medicine. The diabetes medicine Metformin is $35 a month here and $15 in
Mexico. The blood thinner Coumadin is $60 a month here, $15 there.

But what’s new here is a cottage industry of smugglers buying medicines in bulk to bring back to the U.S.

In the movie Dallas Buyers Club, Matthew McConaughey's character sought out AIDS drugs from Mexico because of approval delays at the FDA. These days, the practice has become more common and generalized, with folks bringing everyday medications into the country illegally because of inflated prices barring access to medication by the uninsured.

When black markets occur for legal commodities - especially ones that don't get you high - it's an indictment of government-sanctioned oligopolies controlling distribution and price. Drug companies on the US side are making a fortune from this over-charging, subsidized by friendly government regulators and now gun wielding law enforcement officers. Don't police have anything better to do than arrest folks for getting legal, prescribed drugs to sick people who need them at a cost they can actually afford?

In 5-2 ruling issued Tuesday, the state’s
highest court clarified the issues, providing both a clear definition of
the privacy of phone records in the digital age, and also affording
prosecutors a road map to using those records in their case against
[Shabazz] Augustine.

The court said it was possible that if the
data covered only a short period, then obtaining the records under the
federal Stored Communications Act without a search warrant might be
acceptable. But it said it was clear that in Augustine’s case, in which
two weeks of data was obtained, the period was too long.

“The tracking of the defendant’s movements in
the urban Boston area for two weeks was more than sufficient to intrude
upon the defendant’s expectation of privacy,” said the Massachusetts
court opinion, written by Justice Margot Botsford.

The ruling also makes Massachusetts the latest
of several US states to set stricter limits on government access to
citizens’ phone records.

Rather odd to suggest that it violates someone's rights to access two weeks of data but not short periods. Basically police can peek in on someone but not stare at them. Another Globe report noted that, "Massachusetts joins New Jersey as one of two states where courts have
ruled that phone record searches require a warrant. Maine and Montana
have passed legislation to establish the same policy. And before
Tuesday’s decision, a Massachusetts legislator, Senator Karen E. Spilka,
Democrat of Ashland, filed similar legislation."

The Texas House in 2013 approved an amendment 126-4 requiring Texas law enforcement to get a warrant to access cell-phone location data, but it was stripped out of the version of the bill approved in the Senate. This year, Lt. Gov. David Dewhurst included an evaluation of this and other electronic privacy questions in the interim charge for the Senate State Affairs Committee, so one can expect the matter to be revisited when the Texas Legislature reconvenes in 2015.

Reported the Statesman, "The Austin-based group found that “there is a statewide custom of making
no-knock entries on less than reasonable suspicion.” Among 161
jurisdictions that responded to the Civil Rights Project’s request for
information about specific policies on when an officer can enter a home
to execute a warrant without knocking, only 53 said they had written
policies, according to the report."

Tuesday, February 18, 2014

Somehow I'd missed this must-read post (Feb. 7) from the Austin Statesman's Eric Dexheimer about new prohibitions in the federal Farm Bill on sex offenders receiving food stamps, framing the issue with a discussion of a registered sex-offender in Austin seeking licensure as a plumber's assistant. Wrote Dexheimer:

Over the years, government aid programs have banned certain convicted
criminals from receiving taxpayer assistance. Convicted drug felons
have been prevented from receiving food stamps for nearly 20 years.
(Some states have opted out of the restriction; Texas has not.) Same
with felons on the lam. And some federal housing programs limit where
sex offenders can live.

Agree with them or not, there is a public
good argument to be made for each. Drug addicts could use their food
stamps to buy drugs. Placing sex offenders in public housing might place
other tenants at risk. Extending government aid to wanted criminals
could delay their apprehension.

The new restrictions in the Farm
Bill, signed by Pres. Obama on Friday, are still being parsed; a
spokeswoman for the U.S. Department of Agriculture said the agency is
scrambling to figure out which offenders would be excluded from food
aid. But at least on the surface, the prohibitions appear to be a
departure from the public safety rationale, and more directly punative.
(Ironically, due to existing prohibitions on where they live and what
work they can find, sex offenders are more likely to find themselves in
need of assistance.)

For those in favor of perpetual punishment for sex offenders, it is
undeniably true that many will always be terrible people unworthy of any
assistance. Yet, as Jason C.'s case against the plumbing board
demonstrates, not all of them are.

Monday, February 17, 2014

The Texas prison system has sweetened the pot to attract potential
correctional officers to units dealing with staffing problems around the
state.

Last month, Texas Department of Criminal Justice Executive Director
Brad Livingston approved increasing the recruiting bonus to $4,000 for
new correctional officers willing to sign one-year contracts to work at
15 understaffed prisons that are located in rural areas, or in areas
competing for jobs with the oil and gas industry.

“The recruitment and retention of correctional officers is a top
priority for the agency,” TDCJ spokesman Jason Clark wrote this week in
an email. “The recruitment bonus is another tool the agency is using to
attract applicants to apply for positions at units that are facing
staffing challenges. We understand that the correctional officer
position is one of the most demanding jobs in all of state government.

“TDCJ is committed to doing all it can to recruit and retain correctional officers.”

Two of the units where the increased bonus is being offered are near
Walker County. The Ferguson Unit in Midway and the Eastham Unit in
Lovelady have correctional officer positions that need to be filled. ...

TDCJ is also offering the $4,000 recruiting bonus at the following
units: Briscoe Unit in Frio County; Cotulla in La Salle County; Connally
Unit in Karnes County; Dalhart in Hartley County; Daniel in Scurry
County; McConnell in Bee County; Lynaugh and Fort Stockton in Pecos
County; Jordan and Baten in Gray County; Smith in Dawson County; Stiles
in Jefferson County; and Wallace and Ware in Mitchell County.

The nation's largest probation department strapped GPS ankle monitors
on the highest-risk of those convicts, expecting the satellite
receivers to keep tabs on where they spent their days and nights, and
therefore keep the public safe.

Instead, agents are drowning in a flood of meaningless data, masking alarms that could signal real danger.

County probation officers are
inundated with alerts, and at times received as many as 1,000 a day.
Most of the warnings mean little: a blocked signal or low battery.

The messages are routinely ignored and at times have been deleted because there were so many, officers say.

Auditors making a spot check last fall found more than a dozen cases
in which officers failed to notice that the devices were dead and
probationers roamed unmonitored, some for weeks.

"If we keep getting false positives, we're not going to know the real
one that means danger," said John Tuchek, a vice president for the
Assn. of Probation Supervisors.

California's statewide system for monitoring sex offenders sends out as many as 40,000 alerts each month to state parole agents.

The consequences of ignoring such warnings can be disastrous.

In upstate New York, federal probation officers deluged with false
alarms opted to disregard tampering alerts that cleared themselves
within five minutes.

Ironically, or perhaps just coincidentally, I had first-hand experience just today that Travis County's probation department experiences similar difficulties with false positives for absconders. I'm guessing this is a generalized issue with the tech, not something specific to California.

Friday, February 14, 2014

The McLennan County District Attorney's Office has lost the files from Ed Graf's original trial in which he was convicted based on junk science of murder by arson, the Waco Tribune Herald reported this week (Feb. 12):

Prosecutors are required to turn over to the defense exculpatory
evidence, or material that could be favorable or tend to exonerate a
defendant.

But because District Attorney Abel Reyna and Vic
Feazell, the former district attorney who tried Graf in 1988, have said
the original DA’s office file cannot be located, Graf’s attorney, Walter
M. Reaves Jr., is seeking dismissal of the charges.

Graf, 61, who won a new trial from the Texas
Court of Criminal Appeals, is set for trial May 19 in Waco’s 54th State
District Court.

“Defendant suggests that his trial cannot proceed without the
assurance that any evidence which points to his innocence has been
produced,” Reaves wrote in his motion to dismiss the charges. “That
assurance cannot be given.”

Republican state District Judge Angus McGinty
is expected to resign as soon as Friday amid allegations he reduced
bail on defendants who appeared before him in exchange for auto repairs
on his personal vehicles, federal and courthouse sources confirmed.

McGinty's expected resignation is related to an FBI investigation centered on defense lawyer Al Acevedo,
who confirmed last month to the Express-News that he was under
investigation related to allegations of bribery of judges and others in
the criminal justice system over purported favors on his cases.

Among those the FBI has looked at are certain prosecutors in the
Bexar County district attorney's office who have been seen with Acevedo
at swanky restaurants in San Antonio, where Acevedo picked up large
tabs, several sources revealed.

“We're talking hundreds of dollars,” one federal source said. “But I
don't know that the fibs (FBI) have enough to pursue that. It could just
be seen as courthouse friends going to lunch.”

The probe also extends beyond the Bexar County Courthouse to other
areas in the state where Acevedo has had clients, and it includes
current and former jurists, federal sources confirmed.

Wednesday, February 12, 2014

Check out this excellent story by Maurice Chammah from the Center for Public Integrity examining the closure of the Texas Juvenile Justice Department's Corsicana facility, formerly the "Texas Orphan Asylum," examining the history of the facility and the problems that led to the Legislature finally closing it. The article opened:

When the Texas Juvenile Justice Department released a report in June
2013 recommending the closure of the Corsicana Residential Treatment
Facility, the authors presented an arresting image. The campus in
Corsicana, Texas, they wrote, “continues to pose a risk to the
vulnerable youth population it serves as hazardous debris and glass are
continually unearthed after rain or strong winds.” The roughly 90 youths
at the facility, most of whom had been diagnosed with severe mental
illnesses and who had committed crimes, were using the glass and debris
to "harm themselves." Many of the buildings, the authors noted, "warrant
complete replacement."

When Corsicana was finally emptied by the Texas Legislature in
December 2013, many in the world of juvenile justice reform already
viewed the facility as dangerous and unsalvageable. A federal Bureau of
Justice Statistics report found that in 2008, 23 percent of Corsicana
inmates reported having had sexual relations with staff. Violence was up
as well; in 2012, the facility was responsible for 32 percent of all
violent incidents in the juvenile justice agency, despite housing only
10 percent of the agency’s youths.

A Burleson County grand jury ruled Henry Magee acted in self defense when he shot and killed a Sheriff's deputy during a SWAT raid on his home based on an informant's misinformed testimony. Turned out, he had a pair of six-inch pot plants in the house, not the large-scale grow the informant had claimed. He will still be prosecuted on drug and weapons charges, says the local DA. See Radley Balko for more.

The episode may portend changes both in public perceptions about personal use levels of marijuana as well as unjustified deployment of no-knock raids. The Bryan College Station Eagle's editorial board called the grand jury "courageous" for their decision, opining that "there was no reason to employ a no-knock warrant on the home of Hank
Magee. Officers could have knocked and waited for him to answer. They
could have waited until he left his home. There was no advantage in not
waiting, in not knocking."

Tuesday, February 11, 2014

If you're in Austin, you may want to check out a documentary film on Wednesday at UT's LBJ School about the long-term effects of solitary confinement. Here's a description of the event:

On
October 1, 2013, Herman Wallace's 1974 murder conviction was
overturned, and he was released from prison after four decades in
solitary confinement. Just three days later, Herman Wallace died of cancer, a free man.

After the film, LBJ School Professor Michele Deitch,
a national expert on criminal justice policy, juvenile justice policy,
and the school-to-prison pipeline, will moderate a discussion on policy
implications and questions raised by the film.

The event is free and open to the public, but seating is limited and registration athttp://HermansHouseLBJ.eventbrite.comis required for communication purposes. Light snacks will be provided.

Monday, February 10, 2014

Regular readers will recall that last year the Texas Court of Criminal Appeals declared Texas' online solicitation of a minor statute unconstitutional. Strangely, given that he has no role in criminal cases except when he's invited in by local prosecutors (unless you consider his motives political, in which case it's not strange at all), Attorney General and gubernatorial candidate Greg Abbott sought to have the CCA re-hear the case. Mark Bennett earlier published his arguments why the AG had no authority to request rehearing, and it turns out the State Prosecuting Attorney agrees. Reported the Austin Statesman last week (Feb. 4):

Lisa McMinn, the state prosecuting attorney, asked the Court of
Criminal Appeals to disregard Abbott’s request, arguing that there was
no obligation to notify Abbott about a case he was powerless to join.

McMinn
told the court that only local prosecutors and her office, created in
1923 to handle criminal appellate matters for Texas, may represent the
state in appeals involving criminal cases. Abbott, who represents Texas
in civil court matters, cannot intervene in an ongoing criminal case
unless invited by a local prosecutor — and Abbott received no such offer
in the case, she said.

Sunday, February 09, 2014

At the Motley Fool, a widely read investment analyst site, Bradley Seth McNew had an item Feb. 6 titled, "Why I sold Corrections Corporation of America" despite the companies recent high dividend yields. His concern was over the long-term trends facing the private prison industry. Here's a notable excerpt explaining why McNew thinks the private prison stock is headed south:

Why the stock, and the industry, is now heading for a long-term decline
The
prison population in the United States has finally reversed its growth
trend, and populations fell by 1.7% in 2012. In New York City alone,
incarceration rates have declined 32% since 2001. Other cities will
likely be following. Attorney General Eric Holder, the country's top law
enforcement official, said that "[too] many Americans go to too many
prisons for far too long, and for no truly good law enforcement reason."
With political actions toward legalizing marijuana, relaxing strict
immigration laws, and relaxing judicial punishment for non-violent
crimes, this trend will likely continue during the foreseeable future.

The political environment is changing, with activists and officials
alike seeking to decrease the federal and public burden of detaining
such a large population of people that probably don't need to be locked
up, as opposed to other forms of punishment, such as fines and public
service. CCA has tried to stop this trend. According to ProPublica, CCA
has donated $1.9 million in political contributions from 2003 to 2012 to
favorable candidates, and has spent an astounding $17.4 million on
lobbying during that time. Unfortunately for the private prison
company, the money doesn't seem to be flowing as strongly as before
because the trend is reversing.

Additionally, Corrections Corp. has been the recipient of some bad
attention lately concerning their management of inmates. The company was
recently under suit from prisoners and families of prisoners after
issues involving inmate violence in facilities in Idaho. This is only
the most recent in a series of such issues.

According to reports, 132 inmate-on-inmate assaults were recorded at
the Idaho facility during the one-year period of Sept. 2007-Sept. 2008
alone. Compare that to the 42 recorded at the equally sized state-run
facility during the same time frame. These rises in assaults have been
blamed on poor management and lack of security personnel due to cost
cutting.

McNew thinks the GEO Group is a better financial bet than Corrections Corporation of America - perhaps because of recent sweetheart deals in its home state of Florida - but Grits would point out that GEO is much more laden with debt than its biggest competitor and faces the same long-term trends described above. With state and local incarceration rates declining and the prospect of federal sentencing reforms on the horizon, these companies' only real prospects for growth stem from continued, large-scale immigration detention. So if and when immigration reform ever becomes a reality, Grits fails to see from whence their long-term growth could possibly come. That said, these have been highly profitable companies for the last three decades. But the Motley Fool analysis above suggests the coming decades may not be so kind to them.

RELATED: More CCA troubles: "One of the world’s largest private prison firms agreed to pay Idaho $1 million
on Tuesday to compensate the state corrections department for thousands
of hours in falsified staffing records while key security positions
were left vacant."

Saturday, February 08, 2014

The former police chief of Jarrell pleaded guilty Friday to federal fraud charges, admitting he accepted bribes from undocumented workers to help them obtain temporary immigration status.

Appearing
before a U.S. magistrate judge in Austin, Andres Tomas Gutierrez
answered a series of mostly yes-or-no questions during the 40-minute
hearing. The former small-town police chief admitted to a single charge
of wire fraud/theft of honest services stemming from a federal
investigation that alleged he took payments from several people to give
them immigration benefits for helping with bogus police investigations. ...

As for the undocumented workers caught in the scam, [US Attorney Robert] Pitman said those
victims “at no point presented a public safety threat,” and they will
remain in the country for the time being. They now legitimately qualify
for the temporary immigration status available to people cooperating
with a criminal investigation, he said.

Court records say Gutierrez collected the payments from the fall of
2011 to November 2013. Two other people, who weren’t named in the court
documents and didn’t work for the city of Jarrell, introduced Gutierrez
to undocumented workers who had money to pay for immigration benefits,
the documents said.

Gutierrez and the two people working with him
told the illegal immigrants they would be working as informants for the
Jarrell Police Department, the documents said. As they asked for the
payment, they “lied to the (undocumented residents), telling them that
the Jarrell Police Department would receive the money and use it to pay
expenses related to official business,” the documents said. In fact,
authorities said, Gutierrez and his accomplices kept “the money for
their own personal use,” the documents said.

Then Gutierrez
emailed applications to U.S. government officials in Austin, seeking a
special type of immigration status for those individuals by claiming
they were helping the Jarrell Police Department with narcotics and human
trafficking investigations, authorities said. The “Significant Public
Benefit Parole” — available to foreigners who assist local, state and
federal law enforcement agencies — allows them to remain in the United
States for one year. It can be renewed by a law enforcement agency.

RELATED POLICE MISCONDUCT NEWS: Last month, an East Texas police chief was sentenced to five years in prison for running a license plate check on behalf of a suspected meth dealer. ALSO: Reported the Austin Statesman, "A former Austin police officer has pleaded guilty to giving false
information to federal authorities during a credit card fraud
investigation, according to the U.S. Attorney’s Office." AND: A now-former Tarrant County Sheriff's Deputy was sentenced to 30 years in prison for impregnating a 16-year old relative. AND: Reported AP, "Federal prosecutors say a former sheriff's deputy in West Texas has been
sentenced to four years in prison for distributing cocaine."

Friday, February 07, 2014

In seeming retaliation for airing her own dirty laundry, Bexar County DA Susan Reed's office is seeking a contempt finding against prominent attorney Michael McCrum, a former federal prosecutor and prominent Democrat, alleging he told a witness under subpoena to "get lost for a while" to avoid testifying against one of his clients last fall.

Among the courthouse crowd, however, it's widely believed that Reed's latest salvo against McCrum smacks of retaliation. Last summer, McCrum alleged bias on the part of the Bexar DA in a successful motion for a new trial on behalf of dermatologist Dr. Calvin Day, who was accused of sexually assaulting a patient. McCrum alleged in court documents that Susan Reed engaged in a one-night stand in Las Vegas with Dr. Day and that prosecutors withheld Brady material about a key witness. Reed denied the liaison to the press, which dutifully downplayed the specifics, but Day testified to the matter under oath and passed a polygraph. The court granted him a new trial.

Here's a copy of McCrum's motion on behalf of Dr. Day that some think sparked this latest counterattack. Check it out, it's quite a read. Grits would like to obtain a copy of the transcript from the hearing on that motion to get the whole story, but it's a tad expensive and, as it turns out, it's been a while since I've asked readers for donations so blog funds are running low. If you'd like to contribute to Grits following up on this, donate via the Paypal button in the right-hand column or email me at shenson@austin.rr.com and I'll give you an address to send a check.

Also last year, McCrum accused the DA's office of witness tampering
in a case involving alleged misconduct by two fired Sheriff's deputies after county
employees were told they couldn't speak to defense counsel unless
prosecutors were present. And he represented DA Reed's former personal driver, Mark Gudanowski, when he was accused - and ultimately acquitted - of illegally selling Southwest Airlines vouchers, some of which were used by Reed and her First Assistant Cliff Herberg. McCrum has a reputation of someone not afraid to stand up to the Bexar DA, a distinction not many local defense lawyers care to cultivate.

Courthouse wags might not be as quick to suggest a tit for tat except that Reed has developed a reputation for persecuting those who stand up to her. Just this week, her office had to dismiss charges in an embezzlement case where prosecutors famously subpoenaed papers off the defense counsel's desk during trial and alleged an attorney had conspired with his client to steal them - charges that never came to fruition. The local defense bar called out the DA's office for prosecutorial misconduct and the judge ordered a mistrial. The heavy-handed tactics badly backfired and now the defendant won't be prosecuted.

Another example: when the Legislature authorized a pilot needle exchange program in Bexar County, Reed nixed it by threatening to prosecute anyone who participated.

So close observers are used to this sort of domineering behavior from the Bexar DA. Whether or not Reed's office succeeds in securing a contempt order against Mr. McCrum, they've already sent their desired message to the local defense bar: Either kiss butt when you're told or face retaliation if you try to stand up to bullies in the prosecutor's office.

Thursday, February 06, 2014

Harris County Sheriff Adrian Garcia is seeking yet another variance from the Texas Commission on Jail Standards to house extra prisoners in the county jail, even though the county and local law enforcement have failed to implement jail diversion programs that could prevent overcrowding. See:

The letter from senators includes the following, highly relevant observations:

Our primary concern is that Harris County leadership is not fully utilizing "alternatives to
incarceration, including diversion initiatives and reentry efforts to reduce recidivism," as required on a request for a variance under 37 Tex. Admin. Code § 299.3(8). Variances are unnecessary when there are numerous, effective solutions that can be implemented to not only reduce jail population and eliminate the need for variances, but also increase public safety through more effective and efficient crime reduction strategies.

Over the past few years, problems in Harris County's criminal justice system, which have
contributed to its jail overpopulation, have been well documented. The most widely cited report documenting these problems was requested by Harris County and published by the Justice Management Institute (JMI) in June 2009. The JMI report found two overarching issues resulting in Harris County's jail overcrowding: 1) over-incarceration of drug possession offenders and those with mental illness combined with overreliance on jail as the primary — and often sole — resource for handling persons whose law-breaking is basically a result of substance abuse and mental illness, and 2) underutilization of pre-trial tools.

Historically, the jail has been able to reduce overcrowding by expanding the use of good time credit for eligible inmates and taking advantage of now-overturned policy changes regarding prosecution. Despite the progress made, persistent problems remain, and numerous readily available solutions to those problems — many of which were outlined in detail over four years ago in the JMI report — have not been utilized.

At the very least, County leadership must consider implementing front-end diversion programs similar to Dallas' Prostitution Diversion Initiative, evidence-based programs that divert addicts and the mentally ill into treatment, electronic monitoring, and reentry programs and services that will keep exiting individuals from re-offending.

As recommended by the JMI report, reducing the number of persons booked into the jail — or even brought to the inmate processing center prior to formal booking — is the first stage to help alleviate crowding. Pre-arrest diversion of persons who have committed relatively minor nonviolent offenses is one obvious way to reduce the intake of new inmates.

There are also thousands of low-level drug possession arrestees who could be more effectively addressed through pre-trial diversion, deferred adjudication, probation based on accurate assessments, and various other means of diversion available. These methods of diversion are more effective at reducing crime, a more efficient use of resources, avoid giving these non-violent offenders felony records, and reduce the county jail population. Further, revising intake, charging, and plea negotiation policies and practices in cases involving persons who are accused of relatively low-level offenses and whose conduct does not pose a danger to others will also help with overcrowding and encourage pre-trial diversion. Lastly, bail bond practices and pre-trial services need to be modernized to reduce pre-trial jail populations.

As the largest county in Texas housing the fourth largest city in the nation, Harris County should be at the forefront of implementing and perhaps even creating programs that ensure a safe and secure community and the efficient use of taxpayer dollars.

The continued granting and use of variance beds may prevent immediate crises, but it is not a long-term solution. In addition, it may prevent true collaborative efforts at the local level that could foster real, lasting reform. With that in mind, we urge you to thoroughly review the current variance request, take into consideration the above-mentioned issues, and recognize that more capacity is not the only solution. Ideally, this variance request process should motivate key criminal justice stakeholders in Harris County to reevaluate the options available to them and take steps to implement real jail reduction strategies.

I'm a little late out of the gate on this, but here's an issue most large Texas municipalities will have to struggle with over the next decade, via the SA Express-News (Dec. 31):

Health care benefits for San Antonio's police officers and
firefighters are “richer by a large margin” than those of their peers in
Texas' other largest cities, so the City Council should consider
adjusting them to align more closely, a city task force is expected to
recommend.

Among the group's recommendations is that the City Council establish
policies that ensure the overall police and fire budgets are managed in a
way that their expenses don't crowd out other portions of the city's
general fund — such as libraries and parks. The deepest thrust of the
task force's efforts addresses the growing expenses in active-duty
health care for rank-and-file members of the police and fire
departments.

The task force, which concluded its work Monday, was charged with
studying the health care and retirement benefits of San Antonio's
rank-and-file uniform personnel and their families.

Last August, City Manager Sheryl Sculley
proclaimed that the overall public safety budget would consume the
entire general fund, which currently is about $1 billion, by 2031 if
left unchecked.

I'd like to see the data showing SA cops and firefighters pensions are more generous "by a large margin" than other Texas cities; from what I've heard, Austin and Houston, at least, face similar dilemmas.

The DWI case against former Williamson County
Sheriff’s spokesman John Foster should be dismissed because a trooper
lied during pretrial testimony, according to a press release issued
today by Eve Alcantar, one of the former spokesman’s attorneys.

Alcantar
said she has presented perjury evidence to Williamson County Attorney
Dee Hobbs, but Hobbs has not responded to her request to dismiss the
case. Hobbs said this morning he was preparing a reply to Alcantar’s
press release, which he plans to comment on today.

The case is set
for another pretrial hearing Friday in front of a different judge
because county court-at-law judge Tim Wright recused himself after a
previous pretrial hearing Jan. 17. Wright did not give a reason for the
recusal in official court documents.

Department of Public Safety
trooper Joseph Stuart committed perjury because he said during the
previous pretrial hearing Jan. 17 that he didn’t consult with another
trooper before he arrested John Foster on June 29, 2013, Alcantar said
in the press release. ...

Foster was placed on paid administrative leave after he was initially arrested but is now on unpaid leave.

Williamson County Attorney Dee Hobbs responded with a statement declaring he was "disappointed by defense counsel’s decision to release evidence related
to a pending criminal matter outside the courtroom.” Moreover, “We are also disappointed by defense
counsel’s decision to publicly attack a witness to an ongoing criminal
matter outside of the courtroom.” Doesn't exactly sound like a denial on the "perjury" allegation.

Wednesday, February 05, 2014

Here are a few items that haven't made their way into individual posts but deserve Grits readers' attention:

CCA: Lies about mental health by 'star witness' jailhouse snitch don't violate due process
The Court of Criminal Appeals ruled that false testimony by a jailhouse snitch, described by then-prosecutor Murray Newman as his "star witness," did not constitute a due process violation in a Harris County murder conviction. The informant lied about having hallucinations and delusions and the trial judge told Newman that, without the witness, he had no case. However, the CCA ruled that the snitch's testimony wasn't "material" because the defense had "ample evidence" to argue that the state's star was a "thoroughly discredited and dishonest witness who should not be believed on any topic" and the jury bought her testimony, anyway. The fact that she was delusional, subject to hallucinations, and lied about it, the court reasoned, wouldn't have changed the jury's verdict, despite the trial court's judgment to the contrary. Via TDCAA.

Big-government conservatism and border security
Presumptive GOP gubernatorial nominee Greg Abbott this week advocated spending an extra $300 million on borders security, including hiring 500 new state troopers, but a) has ruled out new taxes to pay for it and b) will offer no suggestions for offsetting spending cuts.

Holding prosecutors accountable
See Texas Lawyer's recent item on new, revised rules from the Texas Supreme Court implementing Sen. John Whitmire's SB 825, which extended the statute of limitations for state bar complaints related to Brady violations. RELATED: Check out an Austin Chronicle item on Anthony Graves' new state bar complaint against former prosecutor Charles Sebesta for withholding evidence in his capital murder case.

Homeless in the jail, but not on the dock
Dallas police are rounding up homeless people and taking them to jail for sleeping downtown, but the city doesn't prosecute the cases for fear the ordinance will be declared unconstitutional, reported Unfair Park.

SA officer indicted for alleged rapeReported AP, "A San Antonio police officer was fired on the same day a grand jury
indicted him for allegedly raping a woman in his patrol car."

Tuesday, February 04, 2014

Texas had the most exonerations of any state in the country according to the National Registry of Exonerations. Reported the Texas Tribune:

Texas in 2013 exonerated more people who were wrongfully convicted of crimes than any other state, according to a new report from the National Registry of Exonerations.

Thirteen Texans were officially absolved of wrongdoing last year for
crimes ranging from murder to drug possession. Some had spent more than a
decade in prison, and others a few months. The state with the
second-most exonerations was Illinois, with nine, followed by New York,
with eight.

The national registry, a joint project
of the University of Michigan Law School and the Center on Wrongful
Convictions at the Northwestern University School of Law, was launched
in 2012. It tracks every known exoneration in the United States since 1989. Texas has 133 exonerations listed. Only New York, with 152, and California, with 136, have more.

The project’s directors stress that many more wrongful convictions never make the list.

“There are many false convictions that we don’t know about,” said
Samuel Gross, editor of the registry and co-author of the report. “The
exonerations we know about are only the tip of the iceberg.”

Of course, the 13 Texas exonerations listed for last year don't include cases like the San Antonio Four or Fran and Dan Keller, all of whom were released on habeas corpus writs because the junk science underlying their conviction was disproven, but weren't declared "actually innocent" by the courts. Grits views such lists like one would a pollster's sample - an indication of the variety of potential causes and types of wrongful convictions but by no means a comprehensive assessment.

Monday, February 03, 2014

Grits has been complaining that the mainstream news media - while trumpeting the most salacious crime coverage they can find to maximize the number of eyeballs viewing their product - have virtually ignored the most important election in the state concerning the criminal-justice system: The race to fill three soon-to-be open slots on the Texas Court of Criminal Appeals where three long-time members are retiring.

Perhaps, though, I spoke too soon. If they're going to flat-out spread misinformation about the races, maybe it'd be better if they said nothing at all. The Dallas Morning News last week endorsed Barbara Walther, the judge who presided over the Great Eldorado Polygamist Roundup, over Bert Richardson, a well-respected Republican out of San Antonio, in the GOP primary for Place 3 on the CCA. That's their prerogative, but the editorial said they endorsed Walther specifically because of her role in the YFZ Ranch fiasco, declaring, "It was an exceedingly complicated case involving 416 children, parents,
Child Protective Services and hordes of lawyers. Her ability to keep a
semblance of order and dispense justice with minimal wrinkles impressed
us as remarkable, given the often chaotic scenario."

That's simply ridiculous given that Walther's own judicial overreach created the "chaotic scenario" in the first place. The Third Court of Appeals ruled (and the Texas Supreme Court agreed) that Walther abused her discretion by ordering more than 400 children to be taken from their parents based on their religious views (a prospect that should worry every religious home-schooler in the state, btw). Since when does a judge abusing her discretion to order 400+ children seized count as "minimal wrinkles"?

The appellate court ruled that Walther erred because she treated the entire 1,700 acre ranch on which many different families resided as a single "household" and failed to require that CPS demonstrate individual children had been abused before taking them from their parents, instead assuming their parents' religious beliefs in and of themselves justified rounding kids up by the busload and dumping them into the foster system. Readers will recall that the entire episode was based on a hoax phone call and Walther conspicuously avoided ever requiring the hoaxer - a woman named Rozita Swinton who called in her false allegations from Colorado Springs - to testify in court. As Grits wrote in 2010:

To repeat what I wrote last year,
"why hasn't Rozita Swinton been charged for her instigatory role in the
Texas case? I think it's precisely because the last thing Judge Walther
and the Texas Rangers want is for her to be cross-examined under oath
about who knew what when and how she was able to pull off such a grand
imposture." If that were to happen, I suspect it would reveal
improprieties by authorities that would invalidate the search warrant
used to get onto the property. I continue to believe officials were looking for any excuse to launch such a raid and knew or should have known at the time they went in that the call was a likely hoax.

One of her supporters campaign consultants insisted in the DMN comments that Walther "rescued more than 400 children from sexual abuse," but that's an absurd claim given that the appellate courts reversed her decision and all but a handful of the kids were returned to their parents. They weren't "rescued" from anything, just traumatized by the state for a few weeks and then released. Indeed, a couple of the attorneys assigned as ad litems in the case have expressed to your correspondent that Walther's actions probably prevented saving a handful of children who really were abused because, by issuing such a sweeping order to round up everyone, she made it impossible to separate the wheat from the chaff.

The Great Eldorado Polygamist Roundup is pretty much Walther's only claim to fame and it was a judge-created fiasco on a scale never before seen in the history of Texas jurisprudence. For the Dallas News to use that episode to justify her endorsement either bespeaks a lack of due diligence by the editorial aboard or an explicit ratification of judges abusing their power whenever they decide the ends justify the means.

For fans of limited government and judicial restraint - which in a Republican primary surely should be the proper measuring sticks - Bert Richardson is clearly the superior choice in that race. It's disappointing the Morning News couldn't see that. Let's hope GOP primary voters do.

Saturday, February 01, 2014

The Sheriff in Johnson County is insisting that the commissioners court must pay to expand the county jail, according to this report out of Cleburne, though "County
Judge Roger Harmon appeared to offer every possible scenario Monday
that might prevent a big-ticket expense – building, or at least major
renovation and expansion, of a county jail."

Sheriff Bob Alford, though, insisted building additional capacity is the only option. Commissioner Don Beeson opined, "Its not popular, but we have a responsibility. We just simply have outgrown this facility."But have they? According to the latest report by the Commission on Jail Standards (1/1/14), the Johnson County Jail has a capacity of 870 but only 454 local prisoners, meaning local demand presently only takes up 52% of available jail beds. When one takes into account more than 250 contract prisoners, though, the jail is 81% full. So the push to expand the jail isn't due to rising local needs but stems from past decisions by the commissioners court to speculatively build excess capacity to house inmates from elsewhere. The ill-fated decision to overbuild the jail has haunted the county for years. In 2010, their previous contractor dumped the county because they couldn't find inmates to fill the empty beds. The new contractor, LaSalle Corrections out of Lousiana, has been more successful at filling the beds and now wants the county to build them extra capacity. Judge Harmon, though:

had pointed words for LaSalle Southwest Corrections, the company that operates the jail.

"It is in our contract with LaSalle that they will take
care of maintenance issues," Harmon said. "Why don't they take care of
their contractual obligation? They're not."

The contract calls for repairs under $5,000 to be
performed by LaSalle. There are at least two of those issues that arise
monthly, Sheriff Bob Alford said. But no amount of $5,000 maintenance
repairs can solve all the jail's issues, Beeson said.

"If it were a $5,000 issue, we wouldn't need a $20 million jail," he said.

The contract with LaSalle Southwest Corrections for
operation of the jail saves the county about $1 million annually, Alford
has said.

"The taxpayers of this county put us in office to
represent the taxpayers," Harmon said. "They did not put us in office to
represent a corporation."

It's disingenuous for Alford to claim the LaSalle contract "saves" the county money. Really, LaSalle's contract only saved the county from the consequences of their own poor decision making. Now he wants commissioners to double down on the bad decision that got them in trouble in the first place. True, the county was losing money hand over fist before LaSalle took over because they'd overbuilt the jail and couldn't find contract inmates to pay the bills. But they don't owe the private prison firm anything and certainly aren't obligated to raise taxes to build additional jail capacity. If the county now needs extra space for their own prisoners, they've got plenty. The only reason to build more is for LaSalle's benefit, not their own.

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-Attorney Bob Mabry, Conroe

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"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

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